NOM BLOG

National Organization for Marriage Praises U.S. Supreme Court for Reviewing Proposition 8 Case Group Predicts that Prop 8 Will Be Upheld

 

FOR IMMEDIATE RELEASE: December 7, 2012

Contact: Elizabeth Ray or Jen Campbell (703-683-5004)


"We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect."—John Eastman, NOM chairman—

National Organization for Marriage

Washington, D.C.— The National Organization for Marriage (NOM) today praised the U.S. Supreme Court for agreeing to grant certiorari in the case determining the validity of Proposition 8:

"We believe that it is significant that the Supreme Court has taken the Prop 8 case," said John Eastman, NOM's chairman and former Dean (and current professor) at Chapman University School of Law. "We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect."

NOM was the largest contributor to qualifying Proposition 8 to the ballot and has been a major supporter of legal efforts to uphold it. The trial court in San Francisco—in a trial presided over by a homosexual judge involved in a long-term same-sex relationship—invalidated Prop 8, finding for the first time in American history a right to same-sex marriage under the 14th amendment to the U.S. Constitution. The Ninth Circuit Court of Appeals, in a decision written by Justice Stephen Reinhart, largely ignored the trial court's reasoning and fashioned a ruling devoid of precedent, claiming that once a state has "approved" same-sex marriage, it cannot take it away. But California voters never approved gay marriage. Instead, a sharply divided state Supreme Court, in a 4-3 ruling, imposed gay marriage. Voters overruled it with the passage of Proposition 8 several months later.

"Had the Supreme Court agreed with the lower courts' decisions invalidating Proposition 8, it could simply have declined to grant certiorari in the case," Eastman said. "It's a strong signal that the justices are concerned with the rogue rulings that have come out of San Francisco at both the trial court and appellate levels. It's worth noting that Judge Reinhart is the most overruled judge in America. I think this case will add to his record."

Today, the U.S. Supreme Court also announced they will review the Windsor case that attempts to overturn the Defense of Marriage Act (DOMA), which was passed by a bipartisan majority in Congress in 1996 and signed into law by President Clinton, defining marriage for the purpose of federal law as the union of one man and one woman.

"We are pleased that the Supreme Court will review lower-court decisions that invalidate the judgment of the U.S. Congress to define marriage as one man and one woman," Eastman said. "It's not the job of federal judges to substitute their views for the policy judgments of the people's duly elected representatives. We believe the U.S. Supreme Court will overturn this exercise in judicial activism and stop federal judges from legislating from the bench on the definition of marriage. We're confident the Court will uphold DOMA."

The Prop 8 case is Hollingsworth v. Perry, No. 12-144.
The DOMA case is Windsor v. United States, No. 12-307.

###

To schedule an interview with John Eastman, Chairman, or Brian Brown, President of the National Organization for Marriage, please contact Elizabeth Ray (x130), [email protected], or Jen Campbell (x145), [email protected], at 703-683-5004.

Paid for by The National Organization for Marriage, Brian Brown, president. 2029 K Street NW, Suite 300 Washington, DC 20006, not authorized by any candidate or candidate's committee. New § 68A.405(1)(f) & (h).

83 Comments

  1. Ash
    Posted December 7, 2012 at 4:00 pm | Permalink

    So glad the wait is over. SCOTUS will now rule on both Prop 8 and DOMA. Let's see what happens! :)

  2. M. jones
    Posted December 7, 2012 at 4:55 pm | Permalink

    This marriage farce will be over soon. Sanctity and dignity will be restored and given the status traditional marriage deserves.

  3. AE
    Posted December 7, 2012 at 5:02 pm | Permalink

    I'm not so optimistic about this one. You think the Supreme Court is really taking on this case because they're concerned about the rogue rulings at the appellate level? I think it's because the court wants to make a grandiose proclamation about same sex marriage.

  4. Quinn
    Posted December 7, 2012 at 6:17 pm | Permalink

    Victory shall be ours!!!

  5. Posted December 7, 2012 at 6:34 pm | Permalink

    This is great news.

    There is zero chance that SCOTUS took thee cases so it could impose pseudo-marriage by judicial fiat.

    They took these cases so that the incredible perversion of justice by the activist judiciary can be smacked down hard, for the good of our constitutional Republic and its sovereign the People.

    I make it 6-3, maybe 7-2 to uphold Prop 8.

    Could very well end up 9-0.

  6. Barb Chamberlan
    Posted December 7, 2012 at 7:00 pm | Permalink

    This is very promising. If there's any consistency in SCOTUS they'll uphold DOMA for the same reason they upheld Osamacare.

  7. Fitz
    Posted December 7, 2012 at 7:08 pm | Permalink

    Both John Eastman, Chairman & Brian Brown know the extent of the judicial manuvering taking place in the movement for same-sex "marriage".

    The Supreme Court case precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942) and Baker v Nelson..

    All these cases establish expressley that marriage as traditionally defined in a fundemental consitutional right.

    In order to change a fundemental right proponents for same-sex "marriage" require a consitutional amendment.

    This is well established in case law and universally recognized by attorneys on both sides.

    As the New York State Supreme Court noted in Hernadez v Robles - “To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”5

    The danger of NOMs approach is that by adopting federalist approach relying on the democratic will of various states they have deminished the power of an already well established fundemental consitutional right.

    We could well end up with a decision upholding Prop 8 and DOMA that would have marriage supporters celebrating and gay 'marriage" proponents crying injustice.

    The reality however is quite the opposite. That decision is one were the fundemental consitutional right to marriage has been eliminated and replaced by a new right based on the democratic will of various states.'

    This is not a victroy for marriage or for the law when seen in the light of already existing Federal precedent on the issue.

  8. Zack
    Posted December 7, 2012 at 7:17 pm | Permalink

    Let's not get ahead of ourselves here. I don't want to count my chickens before they hatch...I've been disappointed already this year and I'd rather not be overly confident.

    This Californian citizen is hoping that Marriage is upheld as the union of one man and one woman.

  9. Zack
    Posted December 7, 2012 at 7:17 pm | Permalink

    typo: California citizen*

  10. Quinn
    Posted December 7, 2012 at 7:20 pm | Permalink

    Can't wait to see the responses from the other side when they lose.

  11. Tribune
    Posted December 7, 2012 at 8:23 pm | Permalink

    I have to agree with Zack. I, as well, am disappointed this year's events. However, I think NOM, as well as other Traditional Marriage advocates, will need to prepare in the event SCOTUS rules in favor. I think we should be ready to defend the rights of normal folks that will be trampled if homosexual "marriage" gets approved. Also, open a front in which will devalue and discredit homosexual "marriage", which should not be hard to do. Salt the earthon homosexual "marriage".

  12. Tribune
    Posted December 7, 2012 at 8:25 pm | Permalink

    Typo: Salt the earth on homosexual "marriage".

  13. RAJ
    Posted December 7, 2012 at 8:32 pm | Permalink

    @ Rick,

    I'd consider watching all the chest-thumping and bravado.

    At a certain point, I started collecting choice quotes of yours about how the state ballot measure votes were going to go in 2012 --- (there were some doozies).

    I've copied these latest SCOTUS predictions of yours and added them to my collection.

    None of us knows what will happen. We're all just starting to digest this, we shall see.

  14. Posted December 8, 2012 at 3:07 am | Permalink

    Well I am delighted to hear that your compendium exists, RAJ.

    I don't have interest in returning the compliment, but thanks just the same.

    You can always visit my blog to collect more for your files :-)

    We will win Prop 8 on SCOTUS appeal.

    The Obamacare decision's one silver lining.

  15. Yusifu
    Posted December 8, 2012 at 5:21 am | Permalink

    Before you celebrate too much about the Windsor case, keep in mind what you're hoping for. Edie Windsor was with her partner for 44 years and nursed her through multiple sclerosis for 32 of them. Not recognizing their marriage makes Edie liable for inheritance taxes of hundreds of thousands of dollars. Oppose gay marriage all you want, but have the decency to acknowledge your policy preferences cause real, profound suffering. People die alone in hospitals with their families turned aside. People lose their houses because of inheritance laws. Couples are separated because of their immigration status. Those are real lives you are happy to diminish because of your ideas about marriage. Own up to the suffering you want to perpetuate.

  16. Jeanette Exner
    Posted December 8, 2012 at 6:41 am | Permalink

    Well I WOULDN'T expect NOM to predict that the Supreme Court would overturn DOMA. Like all the other evangelical organizations, you're putting on a brave face and spin spin SPINNING this issue as optimistically as possible. Famous last words.

    Do you really think the Constitution applies only to people who are Straight (i.e. heterosexual)? Do you really think there is a Constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits and protections Straight couples take for granted? What is it about the 14th Amendment that you don't understand? The Supreme Court will rule in favor of marriage equality for Gay couples just like they ruled against anti-miscegenation laws in Loving v. Virginia.

    Keep that nervous smile on your face while you can.

  17. MarkOH
    Posted December 8, 2012 at 8:12 am | Permalink

    The SCOTUS took this case to make a Loving v. Virginia decision. It will be their legacy. The country is swiftly moving TOWARDS marriage equality - polls show it, recent voting shows it. There just simply is no reason to prevent marriage equality - it doesn't harm opposite sex marriage and is in keeping with the 14th amendment. Defeating DOMA, which is pretty certain, will set up a situation for same sex couples that will force states to recognize their marriages. Can't wait for June

  18. Quinn
    Posted December 8, 2012 at 9:49 am | Permalink

    Sorry Mark - but it's never been about "equality" as you gay people & your supporters always claim. The true nature of your agenda is to force those who oppose the tyranny of your agenda to accept your perverted lifestyle / to force children that being gay is normal (which it's not) & to confuse them as well. Like I said before, if you people want a war on traditional marriage & our traditional values - then we will happy to oblige.

  19. Publius
    Posted December 8, 2012 at 9:54 am | Permalink

    Re comments 15 and 16. The last really contentious issue the SCOTUS took up, Obamacare, it decided to leave to the political branches, and reasonably so.

    The definition of marriage is properly left to the political branches. The traditional definition easily passes the rational basis test. (The strict test requires the court to swallow the absurd claim that gays in 2012 are politically powerless.) Loving did not change the definition of marriage. Loving made marriage a right because, in the words of the Court, marriage is “fundamental to our very existence and survival.” This only makes sense in the context of procreation and the intergeneration nature of marriage. Once marriage is divorced from that concept, it becomes merely a set of government benefits from which singletons (and threesomes, etc.) are arbitrarily and unjustly excluded.

  20. Randy E King
    Posted December 8, 2012 at 10:01 am | Permalink

    If SCOTUS wanted to send a message supporting the tyranny of sexual identity politics all they had to do is let the wholly unconstitutional findings of its subordinate courts stand as written.

    SCOTUS is taking these cases so as to send a unambiguous message to its subordinates that special rights will never be afforded to individuals based solely on their proclivity; that judicial usurpation of the will of the people will not be tolerated.

  21. Jeanette Exner
    Posted December 8, 2012 at 10:02 am | Permalink

    DEAR QUINN:

    Regarding this "war" you refer to ... If the Supreme Court rules that there is no Constitutional argument for denying Gay couples the ability to legally marry, what do you think will happen? Will the "traditional values" people take the law into their own hands? Will there be violence against Gay people and disruptions of our marriage ceremonies? Will there be firebombings of Gay bars? I wonder.

  22. Jeanette Exner
    Posted December 8, 2012 at 10:08 am | Permalink

    DEAR RANDY E. KING:

    You predict the Supreme Court will rule that "special rights will never be afforded to individuals based solely on their proclivity." This could be equally applied to heterosexual couples, so that perhaps the Supreme Court will decide that government has no business being in the marriage business at all. No more tax breaks and Social Security benefits for married heterosexual couples, based on their "proclivities."

    You also write that "judicial usurpation of the will of the people will not be tolerated." It is not the job of judges or court to uphold the precise will of the people, but rather to uphold the CONSTITUTION. Popular laws get struck down all the time because they are unconstitutional.

  23. Son of Adam
    Posted December 8, 2012 at 10:16 am | Permalink

    I should remind you, Jeanette, that the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law in Lawrence. Even Ruth Bader Ginsburg, one of the most liberal members of the court, has indicated that it is counterproductive for the Court to go "too far too fast." Although she tirelessly defends abortion rights, she has still said that "[t]he court bit off more than it could chew" when it decided Roe v. Wade.

    It is highly unlikely that the Supreme Court will overrule 31 state constitutional amendments defining marriage as being between one man and one woman and 31 referendums and force gay marriage on everyone. Any lawyers bringing such a case before the Court will need favorable votes from five of the nine justices. Yet as Constitutional law scholar Andrew Koppelman put it, "When I try to count the votes in favor of same-sex marriage on the Supreme Court, I have trouble getting to one."

  24. Son of Adam
    Posted December 8, 2012 at 10:23 am | Permalink

    "The country is swiftly moving TOWARDS marriage equality - polls show it, recent voting shows it."

    Need I remind you of North Carolina that voted in favor of Natural Marriage by 61% this year? Not to mention all the tens of millions of people who came out in support of Chick Fil A's stand in a single day last summer.

    SS"M" achieved tactical victories this election cycle because they had outspent the opposition by as much as 4 to 1. That's not the flow of history, that's the forcing of it by a wealthy and influential special interest group who believe that they can invent their own civil rights.

  25. Randy E King
    Posted December 8, 2012 at 11:05 am | Permalink

    @Jeanette,

    Opposite sex pairings are tied to the laws of nature and natures God; the very structure upon which the U.S. Constitution is based. Whereas the special rights you are lobbying for are rooted in transitory popular culture.

  26. Pete
    Posted December 8, 2012 at 11:16 am | Permalink

    I think that the reason why gay marriage has gotten traction with the public and court is because they have been able to frame it as a civil rights issue. But, it should be seen as a moral issue just like polygamy. You have two consenting adult but society does not grant them the same status because it is seen as morally unacceptable and it would be forcing others to support this type of lifestyle because in some form or fashion other people end up being "forced" to support them through social security survivor benefit etc. So the marriage is a back door for forcing social acceptance, otherwise civil union would have been sufficient for them. I don't care if they live that lifestyle, but don't force me to accept it.

  27. TC Matthews
    Posted December 8, 2012 at 11:20 am | Permalink

    If you don't like the tax law, change the tax law Yusifu. You'd find a lot more support that way.

  28. Randy E King
    Posted December 8, 2012 at 11:26 am | Permalink

    The reason sexual identity politics has gotten traction in the judiciary is because these individuals are being appointed to the bench by their store bought politicians.

    The handful of favorable ruling realized over the past ten years were all handed down by activists with deep ties to these identity groups.

    This is what tyranny looks folks.

  29. Yusifu
    Posted December 8, 2012 at 11:28 am | Permalink

    My point wasn't about the politics of supporting marriage equality. Public opinion is moving in that direction, whatever opponents would prefer to believe. My point is that opponents of equality need to confront the cruelty their position entails. It isn't just about taxes, or hospital visitation, or Social Security, or any one thing. The human costs are great, and pretending otherwise is only that--a pretence.

  30. Randy E King
    Posted December 8, 2012 at 11:28 am | Permalink

    Correction"

    This is what tyranny looks like folks!

  31. Fitz
    Posted December 8, 2012 at 12:16 pm | Permalink

    Yusifu (writes)

    "Oppose gay marriage all you want, but have the decency to acknowledge your policy preferences cause real, profound suffering"

    What Yusifu dosent want to acknowledge is that lots of situations exist were people dont qualify for those benifits that attach only for married couples..

    People take care of children, parents, siblings and close friends in hopitals all the time without any expectation of special inheritance rights.

    Likewise, people are denied immigration satutus for , parents, siblings and close friends as a matter of course...

    my favorite are the two sisters who spent a lifetime caring for one-another and sharing the family farm and realize that it willhave to be sold upon the death of one, leaving the survivor to have to move in order to pay the taxes..

    "Sisters go to court over 'gay bias' in tax laws"
    U.K. Telegraph By Joshua Rozenberg, Legal Editor
    (Filed: 02/09/2006)

    Treat us like lesbians, say sisters in tax fight
    13/09/2006 U.K. Telegraph By Joshua Rozenberg, Legal Editor

    Even under domestic partner legislation gay couples can get the special tax breaks of inheritance.. Yet multiple other domestic arangments cannot.

    The illigetamacy rates amoung young woman are sky high as they are amoung African Americans. Were is the concern for their children? or those woman?

    The gay left reveal themselves to only care about marriage and family when it comes to their arangments. The narcasism & muddled self serving "thinking" of the left on marriage only extends to its redefinition.

    They have championed, apologized for, and ignored family breakdown for 40 plus years...and now they want society to have bleeding hearts for their small percentage of the population while they could care less about the widespread family breakdown that accompanied their sexual revolution.

  32. Zack
    Posted December 8, 2012 at 12:30 pm | Permalink

    @Fits

    Well said. Well said.

  33. Marc Paul
    Posted December 8, 2012 at 12:41 pm | Permalink

    Fitz, you're mixing things up. UK law is quite different. And in any cases, two sisters are already defined in law as families. It is not up to gay people to ensure they treated fairly by the law re: inheritance tax. It is up to you in fact, if they such 'favourites'. Though I doubt we will see NOM campaign this way. The tactic lost in the Uk and it would fail also in the US.

    If you worried by the breakdown in families then campaign for an end to divorce. No? Not worth millions of Catholic and Mormon dollars? No, because it would lose.

    Campaign for single mothers if you will, or rather, all the money NoM etc have wasted, spend it on single mothers instead and do charitable works. No?

    Hypocrite.

  34. Quinn
    Posted December 8, 2012 at 1:05 pm | Permalink

    @Jeanette Exner - it is your side that started the war on traditional marriage & it's your side that threatens violence if people won't accept the gay agenda as demonstrated by Prop.8 & also the endless lawsuits against people & organizations that won't accept the sick & perverted lifestyle by gay people. gay people & liberals want to destroy the family unit /destroy traditional values / indoctrinate children into the gay lifestyle /claim "hate' speech if anyone speaks out against the gay lifestyle / eliminate free speech against conservatives & want special rights for gay people only. So yeah, it is a war & we (as conservatives) will fight tooth & nail to prevent this disease from spreading.

  35. Fitz
    Posted December 8, 2012 at 1:21 pm | Permalink

    Mark Paul

    You just proved my pointg for me. Those sisters dont get the tax breaks married couples get or even civil pacts do. So what if their considered family? What makes gay relationships more entitled to special privilages that mutual caregiving amoung siblings dont get.

    Like you say (and reveal yourself) -"It is not up to gay people to ensure they treated fairly by the law re: inheritance tax"

    You have no integrity or care for families or the insitition of marriage... you only care about yourself.

    Its not just gay people but the enitrity of the left that abhors marriage...they think of it as archaic and patriarchal and the font of oppresion and female servitude.

    At best your being used as the vehicle to further undermine the insitution of marriage. This expalins why you think that it is the job of traditionalists alone to care about illigetamacy and divorce and the like, while your free to pursue your narrow self interest regardless of the price society has to pay.

    You reveal yourself as someone who could care less about your fellow man..

  36. Fitz
    Posted December 8, 2012 at 3:23 pm | Permalink

    Son of Adam and all others of sound mind and goodwill

    Marriage as traditionally defined is a fundemental consitutional right. This is clear from ALL Supreme Court case law on the subject.

    It is a Federally protected right. No more or less a federally protected right than the right to free speech or freedom of religion or the right to keep and bear arms.

    Redifining this right is the same as redifining the right to "arms" to mean "down pillows" or the right to free speech to mean "saying what the goverment wants you to say".

    The leaders of the marriage movement including NOM know this and knew it from the begining. They made a strategic decision that capatalized on the broad public support that marriage enjoys. If they would have highlighted the truth; that the Supreme Courts only consitutional decision is to overturn those states that have changed the definition of marriage (be it through court decisions, legislatures or popular referendum) - they risked the possibility that less people would be enthusiastic about marriage protection amendments and the marriage movement would have basicly had to sit around until the Supreme court finally got in a position to hear these cases.

    The pro same-sex "marriage" strategy was to get the ball rolling on their unpopular agenda by forcing it on various states through transparently unconsititutional decisions of State Supreme Courts. Once that was done and the framing was cast in the media reporting (gays are like blacks and marriage is the segregated south) they then moved on to amiable state legislatures and finally to the few recent popular referendum.

    When Federally protected consitution rights are at issue it is the Job of the Supreme court to protect those rights regardless of their popularity. The left is basicly correct when the said/say "you dont vote on fundemental rights. Except it is the right to marriage as traditionally understoood that should not be subject to popular will, are State Supreme Court interferance.

    The proper answer to those who want to change the definition of marriage is "your going to need a Federal Consitutional Amendment" - Very much like the 19th amendment (that came after the 14th amendment and its equel protection language) was still required to give half the population the vote. This is despite the fact that the language of the 14th could easily be construed to require suffrage for women. None the less, we had signifigantly principled judiciary that understood its proper application. SO it took the suffragetes basicly 40-50 years to convince their fellow Americans that woman should vote.

    This is the truth that even NOM and other supporters of marriage have not stressed for strategic reasons. However that truth will not be lost on Scalia, Thomas Alito & Roberts.

  37. Randy E King
    Posted December 8, 2012 at 4:09 pm | Permalink

    So what we have here is decadent elites and their supporters attempting to bully patriots into doing their bidding for them. A standard tactic of your a-typical sociopathic personality in their desire to create willing victims who affirm the appropriateness of the crimes perpetrated against them.

    Their innate and immutable sense of guilt drives them to impose responsibility for said guilt unto others so that they can continue to live their decadent lives in relative peace and tranquility.

    Decadence: a period of decline or decay.

  38. Fitz
    Posted December 8, 2012 at 4:19 pm | Permalink

    Continued (from above)
    ALL people of good will who want to protect marriage.

    The movement to redefine marriage knows that marriage as traditionally defined is a fundamental constitutional right. That's why they adopted a strategy of having various state supreme courts impose this on their respective states and then AVOID Federal Court, especially the Supreme Court for as long as possible. That way they could make it look like these were legitimate changes even though they flew in the face of established law on marriage.

    NOW on to important matters...

    One possible outcome of these decisions and the only legally principled decision is to overturn every law throughout the country that infringes on the fundamental right to marry.. This would return marriage as traditionally defined and understood as the legal norm across the country.

    Such a decision would be unlikely to gather the 5 votes necessary however. None the less Scalia, Thomas Alito & Roberts may very well issue this as there dissent. That's good and here's why.

    That way the pressure is put on the leftist wing of the court...Ginsburg, Breyer, Sotomajor,Kagan...and Kennedy to uphold the right of the people to vote on this issue. (a right they don't have absent a Federal construction amendments - this is no different than putting a right to free speech or the establishment of religion up for a vote or eliminate them through State Supreme Court rulings.)

    Believe me... sooner or later same-sex "marriage" will be forced on the entire country. They only chose an incremental approach so as to retain the illusion of legitimacy. Sure they could take this as an opportunity to force the entire country to adopt same-sex "marriage"..or eliminate DOMA, or one of many variations. But that is unlikely for several reasons...most having to do with how it would be received in the House & Senate (necessary for the implication of this new right as we have seen in States that were forced to do this) as well as significant public opposition and the resulting illegitimacy the ruling would take on (like Roe)

    It is the LEFT and advocates for same-sex "marriage" that want an incremental imposition of this new right in order to make it look like its the people who wanted this and not a scheme put together by unprincipled Judges, advocates and journalists.

    If Scalia, Thomas, Alito & Roberts join ANY opinion less than a full restoration of traditional marriage across the country then it is the conservatives signing on to the idea that fundamental rights can be redefined and established precedent ignored. This would be our most principled conservative jurists basically ignoring the truth that marriage is a fundamental right and forever banishing the idea to (what George Orwell called) "down the memory whole."
    Why not force the liberal wing to come to that conclusion... that way it is they who are supporting the idea that this is up individual states. They are more unlikely to overrule a decision that came from the liberal wing of the court.

    Also...If Scalia, Thomas Alito & Roberts (or any number of them) don't take this approach and sign up for the idea that the States decide this on their own... not only do our fundamental constitutional rights go "down the memory hole" BUT (and this is very important) that leaves room for a dissent fro the left claiming that same-sex "marriage" should be forced on the entire nation through the 14th amendment equal protection analysis.

    That would be the dissent that the left and their activists as well as the press would latch onto. The new paradigm would be between those who want to "vote on equality" versus those who want to "establish equality for the entire country"
    I hope you all understand this...If you have any questions please don't hesitate to ask for clarification. I can easily point out the myriad of court opinion both Federal & State that point to this legal truth.

    What saddens me the most is that I know John Eastman, Brian Brown, Maggie Gallagher & Robert George know this is the truth.

    We could well end up in a situation were defenders of traditional marriage will be the ones celebrating a decision that eliminates the fundamental constitutionals right to marriage that has always been in our constitution and celebrating the mere fact that the court has radically called into question a fundamental right that the Supreme Court is supposed to be protecting NOT redefining. At the same time the left will be outraged that the court failed to advance the idea of "equal justice under the law" - instead opting for a state by state battle that they know will most likely give them the incremental advances necessary to make this "movement" look legitimate.

    Again...I hope you all understand this...If you have any questions please don't hesitate to ask for clarification. I can easily point out the myriad of court opinion both Federal & State as well as other sources that point to this truth.

  39. Randy E King
    Posted December 8, 2012 at 4:30 pm | Permalink

    Or to quote the Proposition 8 Legal Defense Team:

    "Ninth Circuit’s ruling continues to be "stayed" and Prop 8 remains in full force while the Supreme Court deliberates over this case of the century. This also maintains our perfect record of keeping Prop 8 on the books and in effect continuously ever since the moment it was passed by California voters in 2008, notwithstanding repeated attempts to have it suspended and allow same-sex "marriages" to resume."

    We continue to win this fight in spite of a corrupt judiciary that has aligned itself against the source of our freedom.

  40. M. jones
    Posted December 8, 2012 at 4:38 pm | Permalink

    Absolutely nothing the court does, will change the age old book of Genesis and the lords truth about marriage.

  41. MarkOH
    Posted December 8, 2012 at 5:34 pm | Permalink

    As I read these posting, I am reminded of this statement from the Supreme Court of Virginia: "The purity of public morals … that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion." Of course, this is from 1878 and was in response to interracial marriage. But it sounds similar doesn't it?

  42. MarkOH
    Posted December 8, 2012 at 5:36 pm | Permalink

    And, in response to anyone who says that gays have the same rights as straights to marry a member of the opposite sex so prohibiting same sex couples to marry is not a violation of their freedoms, I give you this: "A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable." Justice Roger Traynor Supreme Court of California It is about people, not gender.

  43. Fitz
    Posted December 8, 2012 at 6:07 pm | Permalink

    MarkOH

    The problem with the (horribly over used) racial analogy is its power comes from mere analogy. The problem with analogy is it is exactly that: an analogy.

    Its weight raises and falls on the strength of the analogy. Courts have been quick to dismiss this characterization of marriage law with racial segregation.

    The point of anti—miscegenation laws were to keep the races apart. No one would seriously argue that that is the point of marriage law. Quite the opposite, the intention of marriage law is to bring the two sexes together.

    Note this quick rebuke of same-sex “marriage” offered by the plurality in Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

    “[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.”

    The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

    As dismissals of the Loving v Virginia case goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually a analogy that doesn’t hold up precisely because it is not the same kind of things being compared.

    As the Washington decesion illustrates

    "We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State’s DOMA. The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the dissents’ disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the “color-blind” constitution articulated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman. Here, in contrast, the State’s DOMA simply confirms the common law understanding of marriage as a union of a man and woman. It is the dissent that would abrogate the common law understanding through judicial fiat."

  44. Son of Adam
    Posted December 8, 2012 at 6:07 pm | Permalink

    Comparing natural marriage to miscegenation laws is a false and sophomoric analogy. Marriage is about uniting men and women, not segregating the races. And the fact that a man and a woman of any racial combination can have children together proves that God and nature does not forbid such unions.

    Moreover, under miscegenation laws, non whites could marry outside of their race, so long as they weren't white. In contrast, whites could not marry outside of their race at all, only other whites. This double standard shows that those laws were more about promoting white supremacy than family values.

    Marriage IS about people. And people are either male or female, each gender biologically compatible with the other as God and nature ordained. That is why marriage always has been, and always should be between a man and a woman.

  45. Fitz
    Posted December 8, 2012 at 6:13 pm | Permalink

    Mark OH

    From The N.Y court decision

    Note the court appropriately applies Loving, etc.

    From the N.Y. Court Decisision

    The plurality makes strong criticisms of the concurrence and two of the dissents at the outset of its opinion, including charging the main dissent with “sadly overstep[ping] the bounds of judicial review” for suggesting that supporters of marriage laws are bigots.

    Besides calling the lower court decisions “transparently result-oriented” and a reflection of “the dominant political ideas of their legal community,” the concurrence says: “[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington’s definition of marriage.”

    Loving v Virginia

    “Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.”

    But it is the Loving court quoting the precedent of Skinner v. Oklahoma

    That’s a case challenging Oklahoma's Habitual Criminal Sterilization Act, the Court based its finding on the fact that procreation was a fundamental right which belonged to all citizens. In this decision, the Supreme Court held that the acts of marriage and procreation were fundamental rights.

    The state found that they have a valid role in regulating marriage as a social institution, , finding the institution of marriage, social in nature, & a basic civil right that cannot be restricted without very good reason.
    The connection between marriage & procreation is seen as fundamental to the nature of marriage as a fundamental right. It is not linked with marriage because procreation outside marriage is somehow impossible (A system that merely wanted to promote procreation would look quite different) Rather it is responsible procreation in the promotion of family formation that gives the fundamental right it civic power

  46. MarkOH
    Posted December 8, 2012 at 11:28 pm | Permalink

    Fitz: "No one would seriously argue that that is the point of marriage law." Oh, but they did. And used the Bible to support it. Sad when you don't learn from history.

  47. MarkOH
    Posted December 8, 2012 at 11:29 pm | Permalink

    Son of Adam: " Marriage is about uniting men and women, not segregating the races." And yet, that's what the people of that day said. Similar to today's anti-equality marriage people.

  48. Randy E King
    Posted December 9, 2012 at 12:16 am | Permalink

    @MarkOH

    People say a lot of stupid things, but that does not give you the right to hold the whole of humanity accountable for it.

    I guess I should not be all that surprised; don't you insist people do not choose to do the things they do while simultaneously demanding people be equated with what they do?

  49. Zack
    Posted December 9, 2012 at 1:22 am | Permalink

    @MarkOH

    "Oh, but they did. And used the Bible to support it. Sad when you don't learn from history."

    Misinterpretation of the Bible has always been a leftist trait. Even if it was used to support their position, no where in the Bible does it mention race.

  50. MarkOH
    Posted December 9, 2012 at 5:20 am | Permalink

    Zack, A leftist trait? Seriously, more likely a far right trait. But, either way, here are some verses that, historically, were used to support racial separation in marriage:
    Genesis 28:1, Leviticus 19:19, Deuteronomy 7:2-3

    Oh, and there is NOTHING in the Bible that mentions marriage between same sex couples so I guess it's OK.

  51. MarkOH
    Posted December 9, 2012 at 5:22 am | Permalink

    @Randy E King Not quite sure what you are asking. I know that sexual orientation is an innate part a person, unchangeable, like handedness or eye color. I know that homosexuality is a normal expression of sexual orientation. Because I believe in science, not myth.

  52. Marc Paul
    Posted December 9, 2012 at 6:32 am | Permalink

    Fitz, "What makes gay relationships more entitled to special privilages that mutual caregiving amoung siblings dont get."

    So why are you not fighting for all siblings and close relations to gain some of the privileges of marriage? You aren't because they already family which is one of the reasons why LbgT couples should be allowed. They can form a new family where there is none. Thats exactly what opposite sex couples do. It's not all about tax you know.

    You can,t extrapolate what I said to say that I don't care about other issues in society. Your answer to everything is 'get married'. Real world much more complicated and your simple world views are inadequate and punish minorities.

  53. Son of Adam
    Posted December 9, 2012 at 6:32 am | Permalink

    There is no scientific evidence whatsoever that homosexuality is either innate or genetic, MarkOH. Not even the American Psychological Association makes such a contention anymore. There are too many thousands of ex-gays who testify to their change for that urban myth to be taken seriously. Not to mention hundreds of identical twins in which one is gay and the other is straight.

    http://www.voices-of-change.org/

    http://www.peoplecanchange.com/

    http://www.pfox.org

  54. Marc Paul
    Posted December 9, 2012 at 6:41 am | Permalink

    Randy, "I guess I should not be all that surprised; don't you insist people do not choose to do the things they do while simultaneously demanding people be equated with what they do?".

    No we don't. Never have. It's a deliberate mis-statement on your part of course.

    We insist that that we do not choose who we are and we simultaneously demand that we are treated equally for what we are.

  55. Randy E King
    Posted December 9, 2012 at 10:13 am | Permalink

    @Marc Paul,

    Your using semantics. Claiming that people are what they do is the tell-tale sign of your a-typical elitist mentality; the first step towards institutionalized tyranny.

  56. Randy E King
    Posted December 9, 2012 at 10:15 am | Permalink

    Correction:

    ***You're***

  57. Publius
    Posted December 9, 2012 at 10:24 am | Permalink

    Baker v. Nelson came after the Loving decision. The SCOTUS rejected the obvious analogy and refused to equate race with sexual preferences. The Court will soon have an opportunity to reject the analogy again. (See also the lucid comment nr. 44 above.)

    Anyone can cohabit and call themselves a family. They can own property jointly, sign wills, etc. The SCOTUS, however, in Murphy v. Ramsey legally privileged a particular type of family “as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.” The SCOTUS will soon have the opportunity to allow the states and the political branches to reaffirm what the Court stated emphatically and unanimously.

  58. MarkOH
    Posted December 9, 2012 at 10:34 am | Permalink

    Publius, keep holding on to that rainbow. DOMA WILL be found to be unconstitutional. The couple in question were legally married in Canada. If they had been an opposite sex couple, there would have been no problem. But, since DOMA was in place, the surviving spouse was charged over $300,000 in taxes that NO spouse should have to pay. This is clearly a violation of the US Constitution.

  59. Publius
    Posted December 9, 2012 at 10:41 am | Permalink

    Re. comments 44 and 45

    Fitz argues that
    “the intention of marriage law is to bring the two sexes together.”

    And MarkOH misses the point.

    The point of marriage law should be to promote the harmonious and just relationship between the two essential halves of humanity, male and female. The state has obvious and rational grounds for promoting a stable and just framework for the integration of the sexes. In doing so the law can promote responsible procreation and protect women in their vulnerable and asymmetric relationships with men. For the law to treat “women” as fungible with “persons” and “mother” as fungible with “parent” is unjust to women and works to their disadvantage.

  60. Posted December 9, 2012 at 11:00 am | Permalink

    I, personally, am uncertain as to whether or not we will win or lose.

    However, I think that Proposition 8 will be upheld 7-2, with Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan in the majority, with Ginsburg and Sotomayor in dissent.

    I think that DOMA will be upheld 6-3, with the same majority minus... Kennedy.

  61. Randy E King
    Posted December 9, 2012 at 11:08 am | Permalink

    "Nothing can withstand the man who can defeat himself"

    A man who can break himself of his own tendencies is unbreakable. Marriage corruption supporters hold firmly to the belief that they are incapable of breaking away from their own tendencies; this makes them very beatable.

    This is why they will lose; what they believe to be their greatest strength is, in actuality, the weakest chink in the armor.

  62. MarkOH
    Posted December 9, 2012 at 12:12 pm | Permalink

    Publius, so you are sexist as well. What you say doesn't change the fact that it is unequal treatment to deny same sex couples the same rights as opposite sex couples.

  63. Randy E King
    Posted December 9, 2012 at 12:49 pm | Permalink

    At Mark,

    Treating differently things differently is rational; treating different things equally is bigotry.

    Your refusal to acknowledge the complimentary nature of opposite pairings speaks more to your depravity then it does to your professed disgust for all that which shows you in the proper light.

    The Emperor has no clothes!

  64. Publius
    Posted December 9, 2012 at 1:12 pm | Permalink

    Mark,

    To say "women and children first" on a sinking ship does not make one a sexist. Rather, it recognizes the unique value and vulnerabilities of women and children. It is something that is "noble in our civilization" to borrow a phrase from the Supreme Court.

    I suspect that you cannot conceive and carry a child and have never lived with a pregnant wife, so it is hard for you to conceive of the burdens of pregnancy and childbirth. To ignore those burdens in the name of a spurious equality is callous, unjust, and irrational and ignores the rising feminization of poverty and decline of birthrates below replacement levels in many countries.

  65. Publius
    Posted December 9, 2012 at 1:23 pm | Permalink

    Re comment 56.

    By Mark’s reasoning, a polygamous family married in Saudi Arabia can by virtue of moving to America claim an absolute exemption from the laws prohibiting bigamy and polygamy, a claim which the state cannot question. I doubt the court will buy that. The couple in question moved from one sovereign country to another and cannot reasonably claim that they should continue to be governed by the laws of Canada, just as a Saudi who immigrates to America cannot expect to continue to be governed by the laws of Saudi Arabia. The couple had plenty of money and ample opportunity to draft will, a task that is both easy and inexpensive, but they didn’t.

  66. MarkOH
    Posted December 9, 2012 at 2:06 pm | Permalink

    Publius: " protect women in their vulnerable and asymmetric relationships with men"
    Sounds pretty sexist to me.

  67. MarkOH
    Posted December 9, 2012 at 2:11 pm | Permalink

    Publius, comment 62. without the strawman of polygamy, a marriage in another country, such as Saudi Arabia, would be recognized in this country.

    And they did have a will. The issue is the extra tax burden placed on this couple that would not be placed on another couple because DOMA prevents recognition of their legal marriage. Please, know what you are talking about before commenting.

  68. Publius
    Posted December 9, 2012 at 2:46 pm | Permalink

    I suspect every gay man has noticed women are different than men.

    The asymmetry is obvious and the need for protection is obvious. Men can impregnate women. Women cannot impregnate men. Women have inherently different biological clocks than men. This is not sexism, it is biology, and it has undeniable economic and demographic implications that society ignores at its peril. Treating women like men in the military has resulted in horrendous levels of rape in the military. Mark also ignores the feminization of poverty and declining birthrates.

    Polygamy is not a straw man, but a real issue with a billion Muslims in the world. It is also an issue where women are potentially vulnerable.

    A good will and trust can avoid all sorts of taxes. You should look into trusts. It just takes a little more effort than a simple will. Then again, we could decide that Sharia law should govern wills if the couple was married in an Islamic country.

  69. MarkOH
    Posted December 9, 2012 at 3:46 pm | Permalink

    Publius, separate but equal? Why should same sex couples shell out thousands of dollars to secure the same rights that opposite sex couples get automatically? You see, this is why Prop 8 will go down - it is nothing but animus against same sex couples. Allowing same sex couples to marry does NOTHING to opposite sex marriage. There are thousands of laws from local up to Federal that specifically mention "marriage". No amount of "good will and trust" will help avoid this fact.

  70. MarkOH
    Posted December 9, 2012 at 3:50 pm | Permalink

    And, frankly, denying women the right to serve in the military because some good old boys were never taught that rape is a CRIME is a sexist attitude.

  71. MarkOH
    Posted December 9, 2012 at 3:51 pm | Permalink

    And to use your example, I guess we should BAN Saudis from getting married in this country because they MIGHT want to marry multiple women.

  72. Posted December 9, 2012 at 4:27 pm | Permalink

    MarkOH:

    I am a heterosexual male. If, for economic purposes, my best friend and I decide to room together, should we get the same legal benefits?

  73. MarkOH
    Posted December 9, 2012 at 4:46 pm | Permalink

    Dovie E. I am sure that there are plenty of opposite sex couples out there who are "married" for the benefits. Think of some older relatives or neighbors who may only be together because of the legal and financial benefits.

    But, let me ask you Dovie E.. How do you evaluate opposite sex couples who marry today that are just friends who decide to room together? Is there a test to exclude them from legally marrying?

  74. Ash
    Posted December 9, 2012 at 6:40 pm | Permalink

    Great posts, Publius. And you made a good point by using the example of polygamous Saudi marriages. I was thinking about that when reading the anti-DOMA comments of SSMers on another forum.

  75. Ash
    Posted December 9, 2012 at 6:41 pm | Permalink

    *in another forum.

  76. Publius
    Posted December 9, 2012 at 9:00 pm | Permalink

    The law must inevitably make distinctions in taxes unless we go to a single, flat tax levied equally on everyone, i.e., an equal percentage of their income or net worth. Even that would be considered unjust by most Americans. Consider two poor siblings living together, who support each other, and who might also want to avoid taxes. Why should the law not give them a break, too? Consider a second and not legally recognized wife of a bigamous or polygamous couple, who objects to the legal wife getting the wife’s portion of the family inheritance. The law does not give her equal consideration, even if the marriage took place in a country where polygamy was legal.

    Federal courts have traditionally allowed Congress and the states wide latitude in tax and family law and pay little heed to what foreign law might say on these subjects. The court may well have picked this case because of its optics. The plaintiff, a well-to-do person trying to avoid taxes, is not a good poster child for such a radical change in family and tax law. Most married Americans, many of whom worry about leaving an inheritance to their children, will never amass the wealth the plaintiff has.

    This case and the Prop 8 case seem particularly weak ones on which to overthrow the laws of over forty states including over thirty constitutional amendments. In Prop 8 the question is whether the citizens of the state are even allowed to define the word marriage in the way it existed in legal dictionaries for centuries even if the state gives gay couples all the rights of marriage but the use of the word marriage.

  77. Posted December 9, 2012 at 9:00 pm | Permalink

    The test is whether they are, in the natural order of things, capable of FORMING a family with no help from scientific advances or the adoption agency. Infertile and post-fertile couples fall under that rubric because they are man and woman.

    Unless you'd like me to check in each household. But that would be "invading the bedroom," which you guys hate.

    Oh, and my best friend is a guy.

  78. MarkOH
    Posted December 9, 2012 at 11:00 pm | Permalink

    Dovie E., well, if you are using those strict standards, then I guess my sister and brother in law are not a real family because they only conceived using in vitro.

    But, you prove my point as how weak the whole procreation argument is. If it is TRULY a test of what is marriage, then it needs to be proven. If it is not, as I believe, then it doesn't matter.

  79. Publius
    Posted December 10, 2012 at 1:29 am | Permalink

    Re comment 69

    The law must inevitably make distinctions in taxes unless we go to a single, flat tax levied equally on everyone, i.e., an equal percentage of their income or net worth. Most Americans would consider even that unjust. Consider two poor siblings living together, who support each other, and who might also want to avoid taxes. Why should the law not give them a break, too? Consider a second and not legally recognized wife of a bigamous or polygamous couple, who objects to the legal wife getting the wife’s portion of the family inheritance. The law does not give her equal consideration, even if the marriage took place in a country where polygamy was legal. This is not animus, it is merely drawing rational distinctions.

    Federal courts have traditionally allowed Congress and the states wide latitude in tax and family law and pay little heed to what foreign law might say on these subjects. The court may well have picked this case because of its optics. The plaintiff, a well-to-do person trying to avoid taxes, is not a good poster child for such a radical change in family and tax law. Most married Americans, many of whom worry about leaving an inheritance to their children, will never amass the wealth the plaintiff has.

    This case and the Prop 8 case seem particularly weak ones on which to overthrow the laws of over forty states including over thirty constitutional amendments. In Prop 8 the question is whether the citizens of the state are even allowed to define the word marriage in the way it existed in legal dictionaries for centuries even if the state gives gay couples all the rights of marriage but the use of the word marriage.

  80. Publius
    Posted December 10, 2012 at 1:54 am | Permalink

    Re comment 70. I am not denying the right of women to serve in the military, only pointing out that to not recognize their particular vulnerabilities results in horrendous conditions. From the dawn of history, captured women, but not men, faced a high danger of rape. Every commander in and member of the military knows that rape is a crime. The integration of women into male units has been a scandalous disaster. Military women were more likely to be raped by a fellow soldier than killed by enemy fire in Iraq. A commander who puts his troops at needless risk is responsible. The whole system is now rotten and dangerous. I could not recommend the current PC military to my daughters or granddaughters. I speak as a veteran who remembers when women served honorably in separate units. To pretend women don’t suffer when they are treated as fungible with men does them a grave injustice. It is willful blindness.

    And this is not especially due to ignorant good old boys, as Mark would style it. Imagine a small southern town or a religious cult where a fifth of the women were raped. It would be a headline grabbing scandal. Imagine that no one in the cult was ever excommunicated for rape-ever. That would be scandalous as well. Where does such a rape culture exist? It exists on American college campuses including some considered the most “progressive.”

    Statistically, college students are at a higher risk of sexual assault than the general population.
    http://www.womensmediacenter.com/feature/entry/date-rape-revisited

    20% of college women and 6% of college men will be victims of sexual assault. Less than 5% of those assaults will be reported to campus authorities or the police.
    http://www.time.com/time/nation/article/0,8599,2065849,00.html

    Liberal, gay-friendly, and politically correct Yale has never expelled anyone for the crime of rape - ever.
    http://www.cbsnews.com/2100-500172_162-20050348.html

    Google rape culture and Yale and see what eye-opening articles you find! This is a real war on women. The law needs to protect women, not pretend they are fungible with men.

  81. Publius
    Posted December 10, 2012 at 2:01 am | Permalink

    “Same-sex marriage” leads to the exploitation of women. It leads to the buying and selling of eggs and the renting of wombs. Women are reduced to easy bake ovens with no rights to the cupcake. See http://www.mercatornet.com/articles/view/the_link_between_rented_wombs_and_gay_marriage

  82. Posted December 10, 2012 at 8:36 am | Permalink

    MarkOH,

    No, because in the NATURAL ORDER they are capable of bearing young.

  83. Posted December 10, 2012 at 1:51 pm | Permalink

    Fitz:

    Also...If Scalia, Thomas Alito & Roberts (or any number of them) don't take this approach and sign up for the idea that the States decide this on their own... not only do our fundamental constitutional rights go "down the memory hole" BUT (and this is very important) that leaves room for a dissent fro the left claiming that same-sex "marriage" should be forced on the entire nation through the 14th amendment equal protection analysis.

    On this point I cannot agree. Marriage is a domestic institution. For the Supreme Court to force New York, Maryland, etc. to reinstate a single definition of marriage would be nearly as great an act of judicial fiat than imposing same-sex marriage.